Knecht v. Gillman

• Citation: 488 F.2d 1136
• Decision Date: 05 December 1973
• Docket Number: No. 73-1374.,73-1374.
• Parties: Gary KNECHT et al., Appellants, v. James N. GILLMAN et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

488 F.2d 1136 (1973)

Gary KNECHT et al., Appellants, v. James N. GILLMAN et al., Appellees.

No. 73-1374.

United States Court of Appeals, Eighth Circuit.

Submitted October 18, 1973.

Decided December 5, 1973.

L. Vern Robinson, Hawkeye Legal Aid Society, Iowa City, Iowa, for appellants.

Thomas Hronek, Asst. Atty. Gen., Des Moines, Iowa, for appellees.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

This is an action by Gary Knecht and Ronald Stevenson, both in the custody of the State of Iowa, against officials of that state, under 42 U.S.C. § 1983. Their complaint alleged that they had been subjected to injections of the drug apomorphine at the Iowa Security Medical Facility (ISMF) without their consent and that the use of said drug by the defendants constituted cruel and unusual punishment in violation of the eighth amendment. The trial court dismissed their complaint for injunctive relief. We reverse with directions to enjoin the defendants from further use of the drug except pursuant to specific guidelines hereinafter set forth.

After this case was filed in the district court, an order was entered assigning the case to the United States Magistrate for an evidentiary hearing pursuant to Rule 53 of the Federal Rules of Civil Procedure. This hearing was conducted by the magistrate who later filed his "Report and Recommendation" which included a summary of all of the evidence, findings and recommendations to the trial court. He recommended that the complaint be dismissed but that, if the drug was to be used in the future at ISMF, certain precautionary steps be taken in administering the drug and in employing the help of inmate aides. The trial court then gave the parties ten days within which to file objections to the report and recommendations pursuant to Rule 53(e) (2) of Federal Rules of Civil Procedure. Knecht and Stevenson filed their objections seeking clarification of two factual findings of fact. They objected to the recommendations of the magistrate and again requested that the trial court enjoin the injections of apomorphine into nonconsenting inmates. They also requested that the court incorporate the magistrate's recommendation, regarding the future use of inmate aides, into the court's order. The trial court dismissed the complaint and did not adopt the recommendations of the magistrate concerning the administration of apomorphine in the future.

On this appeal neither party challenges the use of the magistrate as a master pursuant to Rule 53 of the Federal Rules of Civil Procedure, and neither party makes any serious challenge to the factual findings of the magistrate. There is no indication that the reference to the magistrate, as master, was done pursuant to local rule, and we assume it was done because of "some exceptional condition" pursuant to Rule 53(b) Federal Rules of Civil Procedure. Under these circumstances we do not reach the question nor express any opinion on the propriety of referring § 1983 cases to a magistrate pursuant to local rule.¹

The summary of the evidence contained in the report of the magistrate showed that apomorphine had been administered at ISMF for some time prior to the hearing as "aversive stimuli" in the treatment of inmates with behavior problems. The drug was administered by intra-muscular injection by a nurse after an inmate had violated the behavior protocol established for him by the staff. Dr. Loeffelholz testified that the drug could be injected for such pieces of behavior as not getting up, for giving cigarettes against orders, for talking, for swearing, or for lying. Other inmates or members of the staff would report on these violations of the protocol and the injection would be given by the nurse without the nurse or any doctor having personally observed the violation and without specific authorization of the doctor.

When it was determined to administer the drug, the inmate was taken to a room near the nurses' station which contained only a water closet and there given the injection. He was then exercised and within about fifteen minutes he began vomiting. The vomiting lasted from fifteen minutes to an hour. There is also a temporary cardiovascular effect which involves some change in blood pressure and "in the heart." This aversion type "therapy" is based on "Pavlovian conditioning."²

The record is not clear as to whether or not the drug was always used with the initial consent of the inmate. It has apparently been administered in a few instances in the past without obtaining written consent of the inmate and once the consent is given, withdrawal thereof was not permitted. Apparently, at the time of trial apomorphine was not being used unless the inmate signed an initial consent, but there is no indication that the authorities now permit an inmate to withdraw his consent once it is given. Neither is there any indication in the record that the procedure has been changed to require the prior approval of a physician each time the drug is administered. Likewise there is no indication that there has been any change in the procedure which permits the administration of the drug upon reports of fellow inmates despite a recommendation by the magistrate that this practice should be avoided.

The testimony relating to the medical acceptability of this treatment is not conclusive. Dr. Steven Fox of the University of Iowa testified that behavior modification by aversive stimuli is "highly questionable technique" and that only a 20% to 50% success is claimed. He stated that it is not being used elsewhere to his knowledge and that its use is really punishment worse than a controlled beating since the one administering the drug can't control it after it is administered.

On the other hand, Dr. Loeffelholz of the ISMF staff testified that there had been a 50% to 60% effect in modifying behavior by the use of apomorphine at ISMF. There is no evidence that the drug is used at any other inmate medical facility in any other state.

The Iowa Security Medical Facility is established by Section 223.1, Code of Iowa, 1973. It is an institution for persons displaying evidence of mental illness or psychological disorders and requiring diagnostic services and treatment in a security setting. The patients admitted to the facility may originate from the following sources:

1) residents of any institution under the jurisdiction of the department of social services;

2) commitments by the courts as mentally incompetent to stand trial under Chapter 783 of the Iowa Code;

3) referrals by the court for psychological diagnosis and recommendations as part of the pretrial or presentence procedure or determination of mental competency to stand trial;

4) mentally ill prisoners from county and city jails for diagnosis, evaluation, or treatment.

Section 223.4, Code of Iowa, 1973.

Those transferred from institutions where they were committed pursuant to civil statutes or those who were committed by order of the court prior to conviction, suffer a compromise of their procedural rights in the process of the transfer to ISMF. The constitutional justification of this compromise of procedure is that the purpose of commitment is treatment, not punishment. Cf. McKeiver v. Pennsylvania, 403 U.S. 528, 552, 91 S.Ct. 1976, 29 L.Ed.2d 647 (White, J., concurring) (1971); Sas v. Maryland, 334 F.2d 506, 509 (4th Cir.1964). Beyond this justification for treatment is the clear command of the statutes that the purpose of confinement at ISMF is not penal in nature, but rather one of examination, diagnosis and treatment. Naturally, examination and diagnosis, by their very definition, do not encompass the administration of drugs. Thus, when that course of conduct is taken with respect to any particular patient, he is the recipient of treatment.

The use of apomorphine, then, can be justified, only if it can be said to be treatment. Based upon the testimony adduced at the hearing and the findings made by the magistrate and adopted by the trial court, it is not possible to say that the use of apomorphine is a recognized and acceptable medical practice in institutions such as ISMF. Neither can we say, however, that its use on inmates who knowingly and intelligently consent to the treatment, should be prohibited on a medical or a legal basis. The authorities who testified at the evidentiary hearing indicate that some form of consent is now obtained prior to this treatment. The only question then is whether, under the eighth amendment, its use should be prohibited absent such consent; and if so what procedure must be followed to prevent abuses in the treatment procedures and to make certain the consent is knowingly and intelligently made.

At the outset we note that the mere characterization of an act as "treatment" does not insulate it from eighth amendment scrutiny. In Trop v. Dulles, 356 U.S. 86, 95, 78 S.Ct. 590, 2 L.Ed. 2d 630 (1958), the Supreme Court stated that the legislative classification of a statute is not conclusive in determining whether there had been a violation of the eighth amendment. Instead, the Court examined the statute by an "inquiry directed to substance," reasoning that "even a clear legislative classification of a statute as `nonpenal' would not alter the fundamental nature of a plainly penal statute." Trop v. Dulles, supra, 356 U.S. at 95, 78 S.Ct. at 595.

Other courts have examined nonpenal statutes in the manner suggested by the Supreme Court in Trop. The contention that a state's incarceration of runaway juveniles could not violate the eighth amendment because the statute did not authorize any punishment of juveniles was struck down in Vann v. Scott, 467 F.2d 1235, 1240 (7th Cir. 1972):

Whatever the State does with the child is done in the name of rehabilitation. Since — the argument runs — by definition the treatment is not "punishment," it obviously cannot be "cruel and unusual punishment." But neither the label which a State places on its own

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